Aboriginal people powerless against miners under present Native Title Act

we have no rights to say no to mining under native title.”

The court has never once found in favour of holders of native title.

the constitution is not silent. It is actively discriminatory, explicitly enabling authorities to enact race-specific laws. This must end.

Native title yes, but still no land rights, The Age July 8, 2015 Elizabeth Farrelly Sydney Morning Herald columnist, author, architecture critic and essayist

Sacred land must not be dug up and our constitution and laws should assure that. So it’s NAIDOC Week. “We all stand on sacred ground,” protests the starry-eyed tagline. “Learn, respect, celebrate.”

Going by the flood of earnest Indigenous heritage displays, trucked-in smoking ceremonies and family-friendly clips of smiling Koori kids you’d think we meant it. Eighty-five per cent of us, apparently, support removing anti-Aboriginal racism from the constitution. God knows it’s little enough, late enough – but is it also hypocritical?

The most memorable part of that June 22 Q&A program wasn’t Zaky Mallah. It was the nine-minute segment on native title and mining rights. Yet the Mallah story was beaten up nationwide like a thousand-egg free-range souffle, while the land-rights conversation once again sank without trace.

The questioner was young Martu man, Curtis Taylor. “I travelled here with my family from the Western Desert. There’s been huge momentum around the Recognise campaign and changing the constitution [but] when are we going to talk about changing the Native Title Act? Because … native title is not land rights.

“We have native title … and we’ve been forced to negotiate with mining companies like Cameco over the Kintyre uranium project, and Reward Minerals over Lake Disappointment (Kumpupirntily): both mining projects we don’t want on our country but we have no rights to say no to mining under native title. When will Australia start talking about changing the Native Title Act and getting real land rights for Indigenous people?”………

ILUA stands for Indigenous Land Use Agreement. In theory, it lets native titleholders benefit from mining on their land. In practice it locks them into a dollar-based white-fella definition of “benefit” and an all-or-nothing approach to land sharing.

At issue are the age-old sophistries of consent. The Man needs your agreement, obviously. Otherwise it’s assault. But there’s a catch. You can’t withhold that agreement. If you try, he’ll knife you first, assault you anyway, steal all rights to compensation – then bill you for services rendered.

So when is consent not consent?…………

There are important differences between the forced compliance of the freehold farmer and that of native title.

Compensation, for one. If the regular farmer opposes mining and the government forces it through, compulsory acquisition provisions come into play. The farmer must receive market value.

Admittedly, as inner-west householders displaced by Westconnex are now finding, this is often inadequate and unfair. But it’s still several rungs up from holders of native title. They have a choice: accept the mine, making perhaps significant money from the despoliation so entailed; or resist – forfeiting all compensation, knowing that the Native Title Tribunal, and the courts, will likely approve the mine anyway – and they could easily be up for costs, as well.

So resistance takes courage. Yet, knowing all this, the Wangan and and Jagalingou people of central Queensland – aka the Galilee Basin – formally refused an ILUA with Indian coal giant Adani, and its attendant “shut-up money”.

Why? Because the land is sacred. Because achieving native title is so onerous, the proof of continuous occupation so difficult, that it’s generally true, as Elder Adrian Burragubba says, that “all we’ve got left now, our inheritance, is the land”.

And because, vast and deep as the spiritual significance of this land is, so too are the mines that threaten it. The Carmichael mine, Burragubba says, will have “devastating impacts on our … ancestral lands and waters, our totemic plants and animals … It will pollute and drain billions of litres of groundwater and … leave a huge black hole of monumental proportions in our homelands … Our land will be ‘disappeared’.”

The $16.5 billion Carmichael mega-mine was approved anyway – by the Queensland government, the tribunal and federal minister Greg Hunt – and within days of the owners’ refusal, Adani launched aggressive legal action.

The court has never once found in favour of holders of native title. But the people will not bow. Last month they travelled to the United States, meeting half a dozen major banks including Goldman Sachs and Standard Chartered, which was to lend $US680 million on the project. Now, several banks have sworn off and some say Carmichael (including port infrastructure near the Great Barrier Reef) is unviable.

But expedience should not be the decider. Tony Abbott vowed this week to “end the great silence about Indigenous people in our founding document”. But the constitution is not silent. It is actively discriminatory, explicitly enabling authorities to enact race-specific laws. This must end.

And when it does, the contest for consent may become more equal.

The 1992 Mining Act provides the cultivation test to safeguard white-fella farming. If farmers can prove the land is “agricultural”, surface disturbance, even for mining, must have written landowners’ consent. Like, consent.

But what is agriculture? In The Biggest Estate on Earth, Bill Gammage shows that, for millennia, much of Australia was a garden – a vast and intricate system of land, species and water management, including mosaic-pattern fire farming.